FRANCE—Article 29 Working Party Guidelines for Apps on Smart Devices
By Jan Dhont and Jonathan Guzy
On February 27, the Article 29 Data Protection Working Party adopted an opinion on smart devices. The opinion strives to clarify the European regime on the collection and use of personal information by means of smart devices.
According to the Working Party, EU data privacy law kicks in as soon as mobile apps are targeted at users within the EU. App providers and other companies collecting and processing personal information via such apps are subject to the EU regulatory regime, even if they are not located in the EU. In addition, all actors in the app business such as app developers, OS and device manufacturers, app stores and advertisers are called upon by the Working Party to collaborate with each other to achieve the highest level of data protection and privacy.
The Working Party considers all these actors as potential data controllers; i.e., the entities which carry the principal obligations under EU data privacy laws.
Synopsis of Core Legal Requirements
Apps serve a wide range of purposes, including web browsing, electronic communication, entertainment, social networking and banking and are often available at no upfront cost to end users. To protect users’ privacy, the opinion considers that data controllers processing information from apps on smart devices must comply with the following key data protection obligations:
Potential app users should be informed in a meaningful way about the type of personal information collected and processed through apps and the exact purposes for which the information is being used. It is recommended to provide a “just in time” notice, which means that the notice be delivered at the point in time when it matters to individuals; i.e., before the collection of information by apps. In addition, the app notice must also be accessible after the installation. App notices should contain information concerning: the identity and contact details of the data controller; the precise categories of personal data processed; the specific purpose of the processing; any disclosure of data to third parties for advertising and/or analytics purposes and whether users will be asked to consent to such data sharing, and how users may exercise their individual rights.
- Free and Meaningful Consent
The opinion notes that two different kinds of consent are required prior to the installation of an app and the processing of personal information: consent as one of the legal bases to process personal data and consent as the sole legal basis to store information on or access information from the mobile device. Both can be obtained simultaneously and must be provided in a free, specific and informed manner. The Working Party specifies that consent must be granular, in the sense that it “is sought for each type of data the apps intend to access,” such as location data, payment data, etc. This approach is believed to adequately inform the user about the service and to ask for specific consent for each type of data processed. In addition, users should be offered means to withdraw their consent in a simple and effective manner.
- Security Measures To Protect Personal Data
The opinion recalls that app businesses acting as data controllers must take the necessary organizational and technical security measures, such as data storage locations, server architecture and user identification methods to ensure the protection of the personal information processed. To that end, the Working Party encourages data controllers to take into account the principles of Privacy by Design and privacy by default at all stages of the design and implementation of the app. In addition, the ENISA security guidelines on mobile devices for app developers may be instructive.
- Purpose Limitation and Data Minimization
The principle of purpose limitation requires that personal information may only be collected and processed for the specific and legitimate purpose for which it was originally collected. Moreover, data controllers must carefully consider which data are strictly necessary to perform the desired functionality.
The Working Party points out important data protection risks for app users in the mobile app “ecosystem”. These risks are mainly caused by the wide range of technical possibilities to access data stored on mobile devices combined with a lack of legal awareness amongst data controllers. The Working Party expects cooperation between the different players on the app and smart device market.
The most important recommendations are as follows:
- Ask for free, specific, and informed consent before the app starts to retrieve or place information on the device;
- Ask for granular consent for each type of data the app will access; e.g., location, contacts, credit cards and payment data, and allow users to revoke their consent;
- Provide a readable and easily accessible app notice;
- Collect only data that are strictly necessary to perform the desired functionality;
- Define a reasonable data retention period depending on the purpose of the app and the relevance of the data;
- Take organizational and technical security measures at all stages of the design and implementation of the app;
- Exercise higher duty of care with users who are minors, and
- Consider proactively notifying app users of any data breach.
- Enforce the information obligations of app developers, such as disclosure to third parties or the principle of data minimization;
- Consider subjecting all apps to a reputation mechanism, and
- Implement a privacy-friendly remote uninstall mechanism.
OS and Device Manufacturers
- Ensure security of processing and consider alerting users to different data usage by apps.
- Avoid delivering ads outside the context of the app.
Overall, the recommendation signals that all the players in the app industry should use their creative talent to deliver more innovative solutions to effectively comply with the EU legal requirements on mobile devices.
The full text of the opinion is available here.
Jan Dhont heads the Data Privacy Practice at Lorenz Brussels. He can be reached at firstname.lastname@example.org (+32 2 239 2000). Jonathan Guzy specializes in data protection and privacy and can be reached at email@example.com.